For many Florida litigators, the most challenging, time-consuming (and, often, tedious) part of drafting any affirmative or responsive pleading is the legal research. In Florida Causes of Action, author Marc Wites has done this hard work for you. Here is just one example – excerpted from Chapter 4, Business and Commercial Cases – of the more than 100 causes of action covered:
§4:50 BREACH OF FIDUCIARY DUTY
§4:50.1 Elements of Cause of Action – Florida Supreme Court
The elements of a claim for breach of fiduciary duty are: the existence of a fiduciary duty, and the breach of that duty such that it is the proximate cause of the plaintiff’s damages.
SOURCE: Gracey v. Eaker, 837 So.2d 348, 353 (Fla. 2002).
§4:50.1.1 Elements of Cause of Action – 1st DCA
The elements of a breach of fiduciary duty claim include: “(1) existence of a fiduciary duty, (2) breach of that duty, and (3) damages flowing from the breach.”
SOURCE: Columbia Bank v. Turbeville, 39 Fla. L. Weekly D 1405, * 11(Fla. 1st DCA 2014).
§4:50.1.2 Elements of Cause of Action – 2nd DCA
To state a cause of action for breach of fiduciary duty, a plaintiff must allege three elements: the existence of a fiduciary duty, a breach of that duty, and plaintiff’s damages proximately caused by the breach.
SOURCE: Rocco v. Glenn, Rasmussen, Fogarty & Hooker, P.A., 32 So.3d 111, 116 (Fla. 2d DCA 2009).
§4:50.1.3 Elements of Cause of Action – 3rd DCA
To establish a breach of fiduciary duty, it must be shown that influence by one party was acquired through the advisement, counsel, or protection of the weaker party and abused to the detriment of the other party.
SOURCE: Real Estate Value Co. v. Carnival Corp., 92 So. 3d 255, 261-262 (Fla. Dist. Ct. App. 3d Dist. 2012).
§4:50.1.4 Elements of Cause of Action – 4th DCA
The elements of a cause of action for breach of fiduciary duty are: (1) the existence of a fiduciary duty; (2) its breach; and (3) damages proximately caused by the breach.
SOURCE: Reed v. Long, 111 So. 3d 237, 239-240 (Fla. Dist. Ct. App. 4th Dist. 2013).
§4:50.1.5 Elements of Cause of Action – 5th DCA
The elements of a cause of action for breach of fiduciary duty are: (1) the existence of a duty; (2) breach of that duty; and (3) damages flowing from the breach.
SOURCE: Crusselle v. Mong, 59 So.3d 1178, 1181 (Fla. 4th DCA 2011).
§4:50.2 Statute of Limitations
Four Years. Fla. Stat. §95.11(3)(p).
1. Full Disclosure Given: While occupying such a fiduciary relation, the officers and directors of a corporation are precluded from receiving any personal advantage without the fullest disclosure to, and assent of, all concerned. Avila South Condominium Assoc. Inc. v. Kappa Corp., 347 So.2d 599, 606 (Fla. 1977). See also First Union Nat. Bank v. Turney, 824 So.2d 172, 188 (Fla. 1st DCA 2001), rev. denied, 828 So.2d 385 (Fla. 2002).
§4:50.4 Related Matters
1. Arms-Length Transaction: In an arms-length transaction, there is no duty imposed on either party to act for the benefit or protection of the other party, or to disclose facts that the other party could, by its own diligence have discovered. Watkins v. NCNB National Bank of Florida, N.A., 622 So.2d 1063, 1065 (Fla. 3d DCA 1993), rev. denied, 634 So.2d 629 (Fla. 1994). See also Taylor Woodrow Homes Florida, Inc. v. 4/46-A Corp., 850 So.2d 536, 540 (Fla. 5th DCA 2003), rev. denied, 860 So.2d 977 (Fla. 2003).
2. Banks: Where a bank becomes involved in a transaction with a customer with whom it has established a relationship of trust and confidence, and it is a transaction from which the bank is likely to benefit at the customer’s expense, the bank may be found to have assumed a duty to disclose facts material to the transaction, peculiarly within its knowledge, and not otherwise available to the customer. Barnett Bank of West Florida v. Hooper, 498 So.2d 923, 925 (Fla. 1986). The relationship between bank and borrower is generally that of creditor and debtor, to which the bank owes no fiduciary duty. However, in some circumstances, a fiduciary duty may be found in a creditor/debtor relationship. Maxwell v. First United Bank, 782 So.2d 931, 934 (Fla. 4th DCA 2001).
3. Corporate Directors: At common law, the directors of a private corporation are considered by equity to be in a fiduciary relationship with the corporation and its shareholders. Fox v. Professional Wrecker Operators of Florida, Inc., 801 So.2d 175, 180 (Fla. 5th DCA 2001).
4. Fiduciary Relationship: To establish a fiduciary relationship, a party must allege some degree of dependency on one side and some degree of undertaking on the other side to advise, counsel, and protect the weaker party. Watkins v. NCNB National Bank of Fla., N.A., 622 So.2d 1063, 1065 (Fla. 3d DCA 1993), rev. denied, 634 So.2d 629 (Fla. 1994). See also Taylor Woodrow Homes Fla., Inc. v. 4/46-A Corp., 850 So.2d 536, 540 (Fla. 5th DCA 2003), rev. denied, 860 So.2d 977 (Fla. 2003). A fiduciary relationship may be either express or implied. Maxwell v. First United Bank, 782 So.2d 931, 933 (Fla. 4th DCA 2001). See also B & C Investors, Inc. v. Vojak, 79 So. 3d 42, 47 (Fla. Dist. Ct. App. 2d Dist. 2011) (statute of frauds would not bar a claim against an attorney for breach of fiduciary duty and legal malpractice which are independent torts, even if same arises from an oral conveyance of land as a result of attorney’s self-dealing).
5. Intentional Tort: Breach of fiduciary duty is an intentional tort. Halkey-Roberts Corp. v. Mackal, 641 So.2d 445, 447 (Fla. 2d DCA 1994). However, in Palafrugell Holdings, Inc. v. Cassel, 825 So.2d 937, 939 (Fla. 3d DCA 2001), corrected by, 854 So.2d 225 (Fla. 3d DCA 2003), the court said a “claim for breach of fiduciary duty may arise out of either negligent or intentional conduct. When the conduct underlying the breach is intentional, the breach is intentional; when the conduct underlying the breach is negligent, the breach is negligent.” See also Horizons Rehabilitation, Inc. v. Health Care And Retirement Corp., 810 So.2d 958, 964 (Fla. 5th DCA 2002), rev. denied, 832 So.2d 104 (Fla. 2002). A breach of fiduciary duty is constructive fraud and thus may form the basis to apply an exception to the homestead protection. Hirchert Family Trust v. Hirchert, 65 So.3d 548 (Fla. 5th DCA June 17, 2011), rehearing denied by 2011 Fla. App. LEXIS 12846 (Fla. 5th DCA July 19, 2011).
6. Nominal Damages: Nominal damages can be awarded when a legal wrong has been proven, but the aggrieved party has suffered no damages or where recoverable damages were not proven. Stevens v. Cricket Club Condo., Inc., 784 So.2d 517, 519 (Fla. 3d DCA 2001). See also Rocco v. Glenn, Rasmussen, Fogarty & Hooker, P.A., 32 So.3d 111, 116 (Fla. 2d DCA 2009) (“However, a defendant may be liable for nominal damages for a breach of fiduciary duty even if the plaintiff cannot prove actual damages.”).
7. Silence: The mere silence by one under such a fiduciary duty to disclose is fraudulent concealment. First Union Nat. Bank v. Turney, 824 So.2d 172, 189 (Fla. 1st DCA 2001), rev. denied, 828 So.2d 385 (Fla. 2002).
8. Transfer of Duty to Another: Fiduciaries are generally not able to avoid the negligent performance of their own special responsibilities by handing them off to someone else. Morgan Stanley DW Inc. v. Halliday, 873 So.2d 400, 403 (Fla. 4th DCA 2004).
9. Joint Venture: A joint venture is created when two or more persons join their property or time, or some combination thereof, in conducting a particular line of trade or for some particular business deal. Jackson-Shaw Co. v. Jacksonville Aviation Auth., 8 So.3d 1076, 1089 (Fla. 2008). The fiduciary relationship between parties arises by virtue of the existence of the joint venture agreement, requiring the parties to deal with each other fairly and in good faith. De Ribeaux v. Del Valle, 531 So.2d 992, 993-94 (Fla. 3d DCA 1988). However, if the performance of an action complained of is allowed in the contract itself, the performance of that action cannot form the basis for a breach of fiduciary duty. Hallock v. Holiday Isle Resort & Marina, Inc., 4 So.3d 17, 21 (Fla. 3d DCA 2009).
10. Non-Profits/Ecclesiastical Entanglement Defense: The First Amendment prohibits civil courts from adjudicating ecclesiastical matters. The First Amendment provides churches with the power to decide for themselves free from state interference, in matters of church government as well as those of faith and doctrine. Malicki v. Doe, 814 So.2d 347, 356 (Fla. 2002). See also Rosenberger v. Jamison, 72 So.3d 199 (Fla. 1st DCA 2011) (court did not recognize breach of fiduciary claim based on allegations that certain church members removed certain other members, elected new directors, and changed church’s governing documents in contravention of Fla. Stat. ch. 617, which governs nonprofit entities); compare Bendross v. Readon, 89 So. 3d 258, 259 (Fla. Dist. Ct. App. 3d Dist. 2012) (recognizing that a breach of fiduciary claim could exist in an intra-church dispute, and the court has a right to redress where there is a showing of fraud, collusion, or arbitrary conduct on the part of church authorities, and if the case was capable of being resolved by applying neutral principles of law as expressed in Fla. Stat. ch. 617, without inquiry into religious doctrine); Sharma v. Ramlal, 76 So.3d 955, 956 (Fla. 2d DCA 2011) (LaRose, J., concurring) (where the record suggests that disputes arose over forms of Hindu temple worship, a court cannot entangle itself in an ecclesiastical matter, but “the dispute [eventually] spiraled into a battle over corporate governance, control and management,” which could support a breach of fiduciary duty claim if alleged properly in a representative capacity as a derivative claim).
§4:50.5 Sample Cause of Action
COUNT FOR BREACH OF FIDUCIARY DUTY
1. Plaintiff realleges and incorporates the allegations set forth in paragraphs __-__ above as if set forth herein in full.
2. Plaintiff and Defendant share a relationship whereby (a) Plaintiff reposes trust and confidence in Defendant, and (b) Defendant undertakes such trust and assumes a duty to advise, counsel and/or protect Plaintiff.
3. Defendant breached its duties to Plaintiff.
4. Defendant’s breach caused Plaintiff to suffer damages.
WHEREFORE, Plaintiff demands damages against Defendant for breach of fiduciary duty and such other relief this Court deems just and proper.
About the Author
Marc A. Wites is a founding shareholder of Wites & Kapetan, P.A., in Lighthouse Point, Florida. He directs the Firm’s litigation practice areas for personal injury and wrongful death, investment fraud, and class actions. He has been named a Florida Super Lawyer (2009-2014) by the Super Lawyers rating service.
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